JUDGMENT OF THE COURT

(Second Chamber)

of 24 June 2004

in Case C-49/02 (reference for a preliminary ruling from the Bundespatentgericht): Heidelberger Bauchemie GmbH (1)

(Trade marks - Harmonisation of laws - Directive 89/104/EEC - Signs capable of constituting a trade mark - Combinations of colours - Colours blue and yellow for certain products used in the building trade)

(2004/C 201/03)

Language of the case: German

Provisional translation; the definitive translation will be published in the European Court Reports

In Case C-49/02: reference to the Court under Article 234 EC from the Bundespatentgericht (Germany) for a preliminary ruling in the proceedings brought before that court by Heidelberger Bauchemie GmbH — on the interpretation of Article 2 of the First Council Directive (89/104/EEC) of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and N. Colneric, Judges; P. Léger, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 24 June 2004, in which it has ruled:

Colours or combinations of colours which are the subject of an application for registration as a trade mark, claimed in the abstract, without contours, and in shades which are named in words by reference to a colour sample and specified according to an internationally recognised colour classification system may constitute a trade mark for the purposes of Article 2 of the First Council Directive (89/104/EEC) of 21 December 1988 to approximate the laws of the Member States relating to trade marks where:

—	it has been established that, in the context in which they are used, those colours or combinations of colours in fact represent a sign, and

—	the application for registration includes a systematic arrangement associating the colours concerned in a predetermined and uniform way.

Even if a combination of colours satisfies the requirements for constituting a trade mark for the purposes of Article 2 of the Directive, it is still necessary for the competent authority for registering trade marks to decide whether the combination claimed fulfils the other requirements laid down, particularly in Article 3 of the Directive, for registration as a trade mark in relation to the goods or services of the undertaking which has applied for its registration. Such an examination must take account of all the relevant circumstances of the case, including any use which has been made of the sign in respect of which trade mark registration is sought. That examination must also take account of the public interest in not unduly restricting the availability of colours for other traders who market goods or services of the same type as those in respect of which registration is sought.

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(1)   OJ C 131, 1.6.2002.